Decision
Ms X and St. James' Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-153081-Q7X3L6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153081-Q7X3L6
Published on
in refusing access to further medical records sought by the applicant on the ground that no further records exist or can be found
29 January 2025
In a request dated 11 June 2024, the applicant made a request to the Hospital seeking access to all her records since 2020. The applicant noted she was particularly interested in records from Psychiatry, the Emergency Department (ED), and Social Work. In its decision dated 16 July 2024, the Hospital stated it was granting the applicant’s request. On 24 July 2024, the applicant requested an internal review of the Hospital’s decision, saying she had not received all records relevant to her request, specifically including referral letters.
The Hospital did not make an internal review decision in the allotted time period. On 20 August 2024, after engagement with this Office, the Hospital issued a letter to the applicant outlining its effective position on her request. The Hospital noted that the applicant had made a previous request for her records in January 2024, following which it had released her records in March 2024. It said that the records it released on 16 July 2024 were those generated since March 2024. The Hospital decided to release further records dating back to 1 January 2020. It stated that this was a full set of notes from 1 January 2020 to 1 August 2024. In this release, the Hospital also provided a copy of the applicant’s blood test results which were sent from the Hospital to her GP. The Hospital also provided the applicant with a copy of the HSE National Records Retention Policy.
On 22 October 2024, the applicant applied to this Office for a review of the Hospital’s decision. In her application, the applicant maintained that the records she received were incomplete.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to submissions made by the Hospital during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
At the outset of this review, the Hospital’s position was that no further relevant records exist or could be found. This is, in essence, a refusal to grant access to the additional records the applicant is seeking under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
Accordingly, this review is concerned solely with whether the Hospital was justified in its decision to refuse access to further relevant records under section 15(1)(a) of the Act.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
Hospital’s submissions
In its submissions to this Office, the Hospital stated that each patient is issued with a unique patient identifier known as a medical record number (MRN). It said that all records relating to a patient use the unique MRN and all attendances to the Hospital are registered against the unique MRN. In order to identify the applicant’s MRN, the Access to Information Office searched the Patient Administration System (PAS) using the surname, first initial and date of birth provided by the applicant. The Hospital said it was able to identify the applicant’s MRN. It said that the PAS also keeps a record of all dates of attendance to the Hospital.
After identifying the MRN, the Hospital stated that the Access to Information Office requested and retrieved the relevant medical records. It stated that the physical/paper medical record, also referred to as the patient’s chart, is filed in an off-site facility. The Hospital said that the chart was requested from this facility and its contents were photocopied for release.
The Hospital said it also uses an Electronic Patient Record (EPR) system which was also searched using the applicant’s MRN. It said that the Access to Information Office made a report request from the EPR system and a range of clinical records relating to the request was downloaded in PDF format.
The Hospital stated that the PAS demonstrated attendance records in the Emergency Department (ED) from the ED database and that these records were copied and released to the applicant.
In relation to the blood results the Hospital released to the applicant on 20 August 2024, it said that these results were ordered by the applicant’s GP, not through the Hospital system. The Hospital said that the Access to Information Office contacted the administration manager of the Central Pathology Laboratory and forwarded a copy of the blood results which the applicant’s GP had ordered. It said these results were then released to the applicant.
The Hospital stated that a complete copy of all records contained in the paper chart and EPR record and the ED records within the scope of the request have been released. The Hospital also informed this Office that the applicant made a subsequent FOI request in August 2024. The Hospital refused records in this request under section 37(3) of the FOI Act. This decision is not subject to this current review as it is a separate, fresh request.
Additional records
At the conclusion of its submissions to this Office, the Hospital stated that it identified referral letters from the applicant’s GP and correspondence between her GP and the Jonathan Swift clinic. It said that these records were found on a restricted access computer drive and fall within the scope of the applicant’s June 2024 request. The Hospital said that the release of these further records is subject to the consideration of the relevant clinical team. It stated that the section 37(3) exemption will be taken into account when considering the release of the records. Section 37(3) of the FOI Act provides that a public body may refuse a request for records of a medical or psychiatric nature relating to the requester if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. The Investigating Officer asked the Hospital when the clinical team would make a decision on whether to release the further records to the applicant. After several weeks, the Hospital has yet to communicate a decision on the release.
My Analysis
The Hospital effectively refused access to further relevant records under section 15(1)(a) of the Act on the basis that no further records exist or can be found. In its submissions to this Office, the Hospital acknowledged that further records had since been located and, as noted above, a decision on access to these records has been referred to the relevant clinical team. Therefore, it is clear at this time that the Hospital had not initially undertaken all reasonable steps to locate all relevant records sought by the applicant.
Accordingly, I have no basis on which to find the Hospital’s effective refusal of access to further records was justified under section 15(1)(a) of the Act. In regard to the records located by the Hospital during the course of this review, it is not the role of this Office to effectively act as a first instance decision maker on access to these records, particularly in circumstances where the Hospital has suggested that it is considering whether section 37(3) of the Act may apply. In the circumstances, it seems to me that the most appropriate course of action for me to take is to annul the Hospital’s decision on the applicant’s request and to direct it to make a fresh decision on the matter in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s decision. I find that the Hospital was not justified in refusing access under section 15(1)(a) of the FOI Act to further relevant records coming within the scope of the applicant’s request and I direct it to make a fresh decision on the applicant’s FOI request.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator